May 7, 2010

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth.

[I]t will not be enough for liberals simply to champion judicial deference for its own sake.

Like the deference of Kelo? Or how about the huge deference the liberals gave to state's rights in Row v. Wade?

The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

Its not even "replacing the narrow interests of the corporate oligarchy with those of the bureaucratic oligarchy" that I fear.

I fear replacing the narrow interests of the corporate oligarchy with the anti-democratic rule of 5 so-called elite justices of the SCOTUS.

Property rights should not be an afterthought. They are a human right, and, moveover, property rights are the keystone in the arch of all human rights....Robbery is the sincerest form on property redistribution.

Oh, yes, let's have an anti-corporate crusader just like The Zero. One who's on the take to everybody, in their top 3 recipients of campaign cash, making those secret back-room deals garage and Alpha claim are what Republicans do.

Keith Olbermann of MSNBC said that with this decision "within ten years every politician in this country will be a prostitute" and compared it to the case Dred Scott v. Sandford, an 1857 case that held that African-Americans could not be citizens.[59]

This is why the American people can't take liberals seriously anymore. Comparing case like this to Dred Scott. Calling people who question AGW as equivalent to Holocaust deniers, etc...

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur. I guarantee that every time Obama says it he loses one point in approval rating.

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur. I guarantee that every time Obama says it he loses one point in approval rating. .

First, bad grammar.

Second, they were told what it meant and said they didn't care. Some continue to claim the label for themselves. Remember that Teabagger youtube a few weeks ago?

Prof. Althouse,Don't you think Rosen should know that the "anti-corporate crusader" William O. Douglas penned the dissent in United States v. Auto. Workers (1957) wherein he would have found the ban on corporate independent expenditures unconstitutional?

Douglas' dissent, joined by Warren and Black, was cited glowingly and pretty much followed by the Citizens United majority (See slip op. pp. 27-28).

You know well, as a legal academic that the modern post-marxist lefty follows critical law theory and doesn't believe in anything as naive as legal "neutrality". For them, all legal analysis is driven by societal power structures, whether the legal actors involved know it or not.

Since there is no neutrality, there is either hegemony of their views or the opposition. They prefer their views.

Do I buy these arguments? No, but I realize that if we seek either to understand or to stymy the modern left, we must chop at the base of the ideological tree and not at the branches.

How about a justice who will be a check on the powers of corporations, instead of a handmaiden?

corporations hold no power over me except GM and Chrysler and health insurers who want to tax me to death and aren't really corporations anymore. if corporations hold power over you might try stiffening your spine.

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur.

Indeed! What reasonable person who enjoys having his testicles sucked on would want to be compared to an uptight and psychopathic weirdo who protests the president with bizarre signs comparing him to Hitler and the Joker? What a disgusting way to demean that person!

Indeed! What reasonable person who enjoys having his testicles sucked on would want to be compared to an uptight and psychopathic weirdo who protests the president with bizarre signs comparing him to Hitler and the Joker? What a disgusting way to demean that person!

Smearing ALL tea partiers because of the actions of a few. Typical Alinskyite tactic.